UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RONALD J. PATRICK, Petitioner - Appellant,

v. ROBERT PATTON, Director, Respondent - Appellee. No. 15-5093 (D.C. No. 4:12-CV -00486-C VE-TLW) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HARTZ , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ Proceeding pro se, Oklahoma state pr isoner Ronald J. Patrick seeks a certificate of appealability (COA) to appeal the district c ourt’s denial of his petition for habeas corpus. 1 We deny his request for a C OA and dismiss this matter. An Oklahoma jury convicted Patrick of multiple counts arising out of an incident in which he impersonated a police officer, kidnapped two people under the guise of a drug sting, and se xually assaulted one of them . The trial court sentenced him to a term of 55 years’ imprisonment. The Oklahoma Court of Criminal Appeals

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and collatera l estoppel. It may be cited, however, for its persuasive value. See Fed. R. App. P. 32. 1; 10th Cir. R. 32.1. 1 Because Patrick is appearing pro se , we liberally construe his filings. Gallagher v. Shelton , 587 F.3d 1063, 1067 ( 10th Cir. 2009). But it’ s not our role to act as his advocate. Id

. FILED United States Court of Appeals Tenth Circuit 

### December 17, 2015 Elisabeth A. Shumaker Clerk of Court2 (OCCA) affirmed Patrick’s conv ictions and sentence on dir ect appeal and denied his subsequent application fo r postconviction relief. Patrick then filed a habeas petition under 28 U.S.C. § 2254 raising four grounds for relief. The district court denied the petition and declined to issue a COA. Patrick filed a motion for recons ideration, but the district court ultimately treated the motion as a second or successive habeas petition filed without prior authorization from this court and t hus dismissed for lack of jurisdiction. Patrick now seeks to appeal the district court’s denial of his petition, but he must first obtain a COA. 28 U.S.C. § 2253(c)(1)(A). We will grant a COA “only if [he] has made a substantia l showing of the denial of a constitutional right.” Id. § 2253(c)(2). To make this showing, Pa trick must demonstr ate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presente d were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (citation and intern al quotation marks omitted). The Antiterrorism and Effective Death Penalty Act (AEDPA) further requires federal courts grant much deference to state court de cisions when, as here, the petitioner’s federal habeas cl aims were adjudicated on th e merits in state court. See 28 U.S.C. § 2254(d); Dockins v. Hines , 374 F.3d 935, 936-37 (10th Cir. 2004). Specifically, a federal court may grant ha beas relief only when the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or was “based on an3 unreasonable determination of the facts in li ght of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). We incorporate this AE DPA deference into our consideration of Patric k’s application for a COA. See Dockins , 374 F.3d at 938. Patrick first asserts his se ntence is excessive because the state court ordered the sentences for counts one, two, four, and five 2 to run consecutively. He argues it is cruel and unusual to make him serve consecutive sentences be cause he will be elderly after serving only a por tion of his sentence. 3 To establish his se ntence violates the Eighth Amendment, Patrick must show this his case is “an ‘extraordinary’ case in which the sentences at issu e are ‘grossly disproportionate ’ to the crimes for which they were imposed.” United States v. Angelos , 433 F.3d 738, 751 (10th Cir. 2006) (quoting Lockyer v. Andrade , 538 U.S. 63, 76 (2003)). Patrick doesn’t argue that any individual sentence is excessive. Instead, he contends serving his terms consecutively makes his sentence excessive. But “[t]he Eighth Amendment analysis fo cuses on the sentence imposed for each specific crime, not on the cumulative senten ce for multiple crimes.” Hawkins v. Hargett , 200 F.3d 1279, 1285 n.5 (10th Cir. 1999). And no reasonable jurist would conclude that any of

2 In his petition Patrick argued his senten ce is excessive becau se the state trial court ordered counts one , two, four, and five to be served consecutively, but Patrick doesn’t mention count five in his application for a COA. We assume this omission was inadvertent. 3 In his petition Patrick also suggested the state trial court violated his due process rights when it failed to provide ad equate reasoning for ordering his sentences to run consecutively. Because Patrick doesn’t raise the alleged due process violation in his application for a COA, we won’t address it here. See Fed. R. App. P. 28(a)(8)(A); Howell v. Trammell , 728 F.3d 1202, 1229 (10th Cir. 2013).4 Patrick’s sentences were gr ossly disproportionate to th e seriousness of his charged offenses, which include first degr ee robbery, kidnapping, and rape by instrumentation, among others. We thus deny Patrick a COA on this claim. Patrick next asserts his tr ial counsel was ineffective for failing to investigate and follow up on leads, and hi s appellate counsel was in turn ineffective for not raising trial counsel’s in effectiveness on appeal. 4 To establish ine ffective assistance of counsel, Patrick must show “that counsel made errors so serious that counsel was not functioning as the ‘couns el’ guaranteed the defendant by the Sixth Amendment” and “that the deficient perform ance prejudiced the defense.” Strickland v. Washington , 466 U.S. 668, 687 (1984). Because it’s “all too te mpting for a defendant to second-guess counsel’s assistance after conviction or adverse se ntence,” however, “[j]udicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. And, again, federal courts review a state court’s adjudication of claims on the merits through AEDPA’s deferential lens. See Yarborough v. Gentry , 540 U.S. 1, 6 (2003); Dockins , 374 F.3d at 936-37. The district court’ s review of Patrick’s ineff ective assistance of counsel claims is thus “ doubly deferential.” See Yarborough , 540 U.S. at 6

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4 Patrick also asserts his appellate couns el was ineffective because “the method and manner of the appeal” was substandard and because counsel allegedly failed to investigate and obtain exculpatory evidence at the appeal stage. Ap lt. Br. 4. But these issues were not presented in his petition, and thus we won’t consider them here. See United States v. Viera , 674 F.3d 1214, 1220 (10th Cir. 2012).5 We find no basis to conclude that a reas onable jurist could debate the district court’s denial of Patrick’s ineffective assistan ce of counsel claims , particularly in view of its doubly deferential review of the state court’s decision. The district court found the OCCA provided a well-reasone d opinion establishing that Patrick’s arguments regarding his tria l and appellate counsel’s in effectiveness were mere speculation. And even if reasonable ju rists could debate whether counsel’s performance was somehow deficient, Patric k doesn’t argue he was prejudiced by any deficiencies—that there is a “reasona ble probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694. We thus deny a C OA on his ineffective assistance of counsel claims as well. Finally, Patrick asserts the prosecuti on engaged in misconduct by misleading the defense. But Patrick’s al legation differs from his alle gation before the district court. Specifically, although Patrick labe led “Ground IV” of his petition “Prosecutor Mislead [sic] the Defense,” R. vol. 1, at 21, the district court interpreted the facts supporting this ground as directed solely to a newly discovered evidence claim. See Patrick v. Patton , No. 12-CV-0486-CVE-TLW, 2015 WL 4545933, at *9 n.6 (July 28, 2015); see also Barnett v. Hargett , 174 F.3d 1128, 1133 (1 0th Cir. 1999) (explaining that we normally don’t interfere with district court’s interpretation of a pro se pleading). Now, in his COA app lication Patrick alleges prosecutorial misconduct arising from “[t]he failure to secu re the video tape of the interrogation,” Aplt. Br. 4, an argument not related to the newly discovered ev idence claim raised6 below. We decline to consider this ne w allegation in the first instance here. See Viera , 674 F.3d at 1220. Because we conclude no reasonable jurist would find the de nial of Patrick’s habeas petition debatable, we deny a COA on all claims and dismiss this matter.

Entered for the Court
Nancy L. Moritz Circuit Judge